So What is this Different Kind of Legal Advocacy?

By Attorney Michael A. Zeytoonian

One reason we changed the name of my own firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different role calls for a different kind of lawyer. Not only is the training for this role different but the whole feel and intuitive skills are different. Some of this can be learned and obtained through training and practice. But part of this is just inherent intuition and it cannot be taught. That part is the realm of insights, innate ability and presence.

The word “different” appeared in the last paragraph seven times, naturally, but also to stress a point. This ADR area of law calls for a different skill set. To just plug any litigator or other kind of lawyer into this role would be doing the client a great disservice. You wouldn’t use a transactional lawyer to try a case just as you wouldn’t use a clinical research doctor to do surgery. And surgeons do not usually serve as primary care physicians because (a) they probably have no interest in doing so and (b) they do not have that skill set.

ADR processes, unlike litigation and arbitration, are not adversarial processes. They are not zero sum game, win-lose situations. The degree of victory is not determined by the other side’s degree of loss. Any kind of “hide the ball” strategy when it comes to information exchanges, or the practice of continually hammering away at the other side’s flaws and weaknesses are counter-productive. The focus of ADR is on the present and the future outcome, not the past and the laying of blame. These are processes that work to find shared interests and work toward connection, instead of harping on differences and driving people apart.

On the contrary, knowing what the other side’s needs and interests are is productive. Information is viewed as a shared asset, not a strategic weapon. Active listening to the other side is productive. The quality of the end resolution depends on both sides winning, not one winner and one loser. Collaboration of clients and lawyers working together not only replaces the adversarial approach; it also replaces compromise in the sense that compromise calls on us to give up something important (win- some lose). These processes have a goal of win-win and their challenge is how can we solve the problem so both sides get what they want. That’s what makes these approaches so valuable to clients.

There is a special niche in the legal profession for this role of focused representation, serving clients as settlement counsel or collaborative counsel. As clients demand better value in legal services and as lawyers are driven to develop better ways to serve their clients, this new niche will continue to grow. Some lawyers try to represent clients as both their litigators and their settlement counsel; some clients try to cut costs and corners by hiring one type instead of two. Every once in a while, you might a person who is gifted both as a litigator and also as settlement counsel. But given how different the mind-sets and strategies of these two are, it is not likely that one lawyer will be able to (or want to) serve both roles.

My experience, having been a litigator as well as working as settlement or collaborative counsel, and having sometimes tried to serve clients in both roles, is that clients are better served if they have different lawyers who are trained for this special kind of legal representation, limited to Settlement Counsel or Collaborative Counsel. The rules of Collaborative Law mandate lawyers that are at the very least trained in Collaborative Law. But even in mediation or other dispute resolution processes that are based on satisfying interests (interest-based), this focused representation by a lawyer who specializes in this niche is the better course of action for clients.

I’ve heard people who are in a business or employment dispute often lament: “I’m stuck in this dispute, and now we’ll have to litigate; I have no options.” If you take nothing else from this post, know this: They are usually wrong about this.

This is like when a retail sales person gives you the company line: “If you want to buy it, that’s the price.” You feel like you have no choice.

My father taught me that everything is negotiable, especially if you are willing to walk away from the deal. His lesson was the core message of what those in the dispute resolution field today refer to as having good “BATNA” (best alternative to a negotiated agreement). When you don’t need to buy what they are selling to you, when you can and will walk away, you have great BATNA.

My dad also gave my wife one piece of advice when she married me: “Make sure you give Michael options; he needs to have options.” This was great advice for her. I am a true Libran in the sense of weighing options before deciding. That’s part of what drives me to provide clients with options for how they should resolve their disputes.

Most people in disputes don’t know they have options and if they do, don’t consider them. They may have heard of mediation and arbitration but really don’t know exactly how they work, what the differences are and when to utilize them. They have probably not heard of collaborative law, conciliation or case evaluation. They usually just start the litigation process, which is like opting for legal surgery.

We don’t approach legal disputes the way we would probably approach medical issues. When it comes to our health, we get advice from doctors we know and trust, and we often also get at least one second opinion. We don’t just call the surgeon and start the prep for surgery first. Yet that is what most people do when they are in a legal dispute.

Legal disputes affect your health and well-being in more ways than one. So why wouldn’t we check what options are available for resolving this dispute and get some good counsel on the pros and cons of each alternative to going to court before we choose a course of action?

Your best “First Step” is finding a legal counselor that will assess your situation, teach you about the dispute resolution options available to you, recommend which one is the right process for you and tell you why. It should be a lot more like the medical process than you think.